United Workers Union v South Australian Water Corporation
[2021] FedCFamC2G 376
•23 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
United Workers Union v South Australian Water Corporation [2021] FedCFamC2G 376
File number(s): ADG 358 of 2021 Judgment of: JUDGE BROWN Date of judgment: 23 December 2021 Catchwords: INDUSTRIAL LAW – Interim injunction – application for reinstatement following adverse action – general protection – workplace right to take part in industrial activities – assessment of prima facie case – balance of convenience – matters to be considered. Legislation: Fair Work Act 2009 (Cth), Pt 3-1, ss 340, 342, 346, 361, 545 Cases cited: Australian Worker’s Union v Chemring Australia Pty Ltd [2019] FCA 750
Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500
Bullock v Federated Furnishing Trades Society of Australia (1985) 5 FCR 464
Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Elliott v Kodak Australia Pty Ltd [2001] FCA 1804
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Quinn v Overland [2010] FCA 799
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184Division: Division 2 General Federal Law Number of paragraphs: 151 Date of hearing: 16 December 2021 Place: Adelaide Counsel for the Applicant: Mr Blewett Solicitor for the Applicant: United Workers Union Counsel for the Respondent: Mr Keane Solicitor for the Respondent: EMA Legal ORDERS
ADG 358 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UNITED WORKERS UNION
Applicant
AND: SOUTH AUSTRALIAN WATER CORPORATION (SA WATER)
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
23 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application for interlocutory relief contained within the application filed on 30 November 2021 is dismissed.
2.There be no order as to costs.
3.The proceedings be listed for further directions on 1 April 2022 at 9:30 am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These proceedings arise in the context of Part 3-1 of the Fair Work Act 2009 (Cth).[1] It creates a number of rights, attaching to employees in their workplace, which are protected by the legislation. If the court finds that any of these general protection provisions have been breached it is authorised, by the Act, to impose a civil penalty, by way of remedy.
[1] Hereinafter referred to as “the FWA” or “the Act”.
One of those rights is the right of employees to engage in industrial activity and to be members of industrial associations.[2] The legislation designates these as workplace rights. Pursuant to section 340(1) of the Act a person must not take adverse action against another person because that person has a workplace right.
[2] Fair Work Act 2009 (Cth) s 346.
The applicant in this case alleges that adverse action was taken against two of its members because they engaged in union related activities in their workforce in the context of enterprise bargaining.
The respondent employer asserts the two men were dismissed because they consciously acted in a manner which was contrary to its interests, and when caught out, lied about what had happened. It denies that the union activities of the two employees in question had anything to do with its decision to dismiss them.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. In the context of an employer-employee relationship, adverse action includes dismissal from employment.
The Applicant,[3] is an industrial association. It has commenced proceedings on behalf of two of its members, Mark Fellowes and Adam White, who were dismissed from their employment, with the Respondent, the South Australian Water Corporation on 19 November 2021.[4]
[3] Hereinafter referred to as “the UWU” or “the Union”.
[4] Hereinafter referred to as “SA Water”.
Between mid-February 2021 and early-December 2021, when the negotiations concluded with an approved agreement, the UWU and SA Water were engaged in a series of negotiations to conclude a new enterprise agreement between SA Water and its workforce, which included Mr Fellowes and Mr White, who were engaged at the respondent’s Port Pirie depot.
In this period, employees, including Mr Fellowes and Mr White, took part in a number of authorised industrial actions, which included work stoppages. The most significant of which was a 24 hour stoppage on 24 September 2021, which included a rally outside SA Water’s head office in Adelaide, which both Mr Fellowes and Mr White attended.
The previous day (23 September 2021) both Mr White and Mr Fellowes attended work at the Port Pirie depot. Mr White was employed as a field coordinator and was in a team with Mr Fellowes, who was a field technician.
In general terms, the two men were responsible for managing SA Water’s waste management and water supply network in the vicinity of Port Pirie, including its rural outskirts. This included reading water meters and fixing water leaks. They utilised an SA Water vehicle to carry out their duties and each was issued a mobile phone.
On 23 September 2021, Mr White and Mr Fellowes were directed to engage in a process of meter readings on what is known as the south run, which is an area of rural land, consisting of farmland and paddocks, to the south of the Port Pirie Township. What the two men did or did not do on this run is the source of significant controversy between the parties and has led to the institution of the current proceedings by the UWU.
On 26 October 2021, Paige Mower, who is an Human Resources Business Partner employed by SA Water and Mr Chris Tscharke, who is employed as its Manager of Field Operations, were directed to investigate what had occurred on 23 September 2021, particularly whether there had been a deliberate leak from one of the water valves in the vicinity of the south run and further whether Mr White and Mr Fellowes had in fact been performing the duties directed of them on the afternoon of that day.
As a consequence of this direction, Ms Mower and Mr Tscharke travelled to Port Pirie and interviewed Mr White and Mr Fellowes on 11 November 2021. Earlier, on 4 November 2021, both Mr White and Mr Fellowes had been suspended from duty on full pay, whilst this investigation took place.
In addition to the interviews with Mr White and Mr Fellowes, Ms Mower and Mr Tscharke had access to mobile phone date for the work phones issued to the two men and the vehicle tracking data in respect of the work vehicle, which they were using on the 23 September 2021.
In addition, a significant aspect of their investigation concerned two anonymous telephone calls made to SA Water’s Customer Call Centre, in the early hours of 24 September 2021, regarding a water leak in the area of the south run, which management of SA Water regarded as being suspicious.
Ultimately, on 19 November 2021, Mr Chris Young, who is SA Water’s Field Operations Manager, wrote separately to Mr White and Mr Fellowes informing each of them of the result of Ms Mower and Mr Tscharke’ s investigations.
Firstly, each was informed that SA Water believed that they had tampered with a fire valve, on Lower Broughton Road, during work hours, on 23 September 2021, causing it to run water. This was prior to the work stoppages scheduled for the next day and, from SA Water’s perspective constituted a public risk and a threat to its reputation for reliability in providing water.
Secondly, each was informed that on 23 September 2021, SA Water had determined that each of them had stopped performing their directed task of reading meters and had nonetheless recorded that they had been attending to work duties and claimed pay in respect of time when they had not been engaged in performing their designated duties.
Thirdly, insofar as Mr White only was concerned, it was alleged that he had used his work phone, to send a text message to a SA Water colleague, which read as follows:
I need to try and miss some targets without making it look deliberate
Fourthly, again only so far as Mr White was concerned, SA Water was of the view that he had been verbally aggressive, when his work conduct was being investigated by Ms Mower and Mr Tscharke.
On the basis of the investigation, Mr Young concluded that all of the allegations had been substantiated and each constituted a breach of SA Water’s policy relating to fraud and corruption and its ethical standards. In addition, it was considered that Mr White and Mr Fellowes had broken the ethics code for the South Australian public service, as well as their contract of employment with SA Water.
In these circumstances, Mr Young decided to terminate the employment of Mr White and Mr Fellowes as, from the perspective of SA Water management, there had been an irretrievable breakdown in the employment relationship between it and the two men concerned, whom SA Water no longer trusted to work reasonably and lawfully, as directed. The termination was effective from 19 November 2021.
The UWU commenced these proceedings on 30 November 2021. The Union claims that SA Water has taken adverse action against Mr White and Mr Fellowes, in its termination of their employment, which contravenes their protected right to engage in industrial action. Essentially the Union claim that the reason given by SA Water for dismissing the two men is a subterfuge and the active and substantial reason for their dismissal was their industrial activities.
In support of this claim, the UWU points to the fact that both men are members of the Union; each has actively advanced the views of the Union in respect of the enterprise bargaining negotiations between it and SA Water; have encouraged their colleagues to take part in protected actions in respect of these negotiations; and have themselves participated in the various authorised shutdowns, which have been scheduled to take place in connection with enterprise bargaining negotiations.
In these circumstances, on a final basis, the Applicants seek appropriate declarations that the provisions of the FWA have been breached and the imposition of penalties, on SA Water in respect of such breaches. In addition both Mr White and Mr Fellowes seek monetary compensation in respect of the contraventions.
More relevantly, so far as the present proceedings are concerned, an interim injunction is sought pursuant to section 545(2)(a) of the FWA, pursuant to which the Applicants seek to be reinstated in their respective positions, at the Port Pirie depot, pending the outcome of their substantive application to the court. This application is opposed by SA Water.
LEGAL PRINCIPLES APPLICABLE TO THE GRANTING OF INTERIM RELIEF
Section 545 of the FWA reads as follows:
(1)The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.
The first limb of section 545 ostensibly requires the court to reach a state of satisfaction that a civil remedy provision has been breached before granting an injunction pursuant to section 545(2). Accordingly, prior to granting such an injunction, at an interlocutory stage, the court must conduct an analysis of the evidence available to the party seeking the injunction.
The granting of an injunction, including one restraining an employer giving effect to a decision to terminate employment, depends on the satisfaction of two distinct but interrelated considerations:
·Firstly, whether the applicant concerned has demonstrated a sufficient likelihood of success, at the final hearing stage, to justify the preservation of the status quo pending trial. This is usually summarised as whether there is a serious question to be tried.
·Secondly, whether the loss sustained by the Applicant, if the injunction is refused, either outweighs or is outweighed by the injury to be sustained by the respondent, if the injunction is granted. This is usually summarised under the rubric of the balance of convenience.
Whether there is a serious issue to be tried, involves an assessment of the case on a prima facie basis. This involves an assessment of the evidence available at the interim stage, which, in turn, is influenced by the nature of the right asserted, within its applicable legal context.
In Quinn v Overland,[5] Bromberg J said as follows:
The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability.
[5] Quinn v Overland [2010] FCA 799 at [46] (Bromberg J).
Necessarily, it is frequently impossible for an applicant to demonstrate that he or she is assured of complete success at the final hearing stage. What is required is the establishment of a state of affairs which indicates that it is more probable than not that there will ultimately be such a level of success. This consideration is influenced by the moment or significance of the issue to be tried. For obvious reasons, where there is a very strong evidentiary claim, it is likely to lead a court more readily to grant an injunction than when the case in question can be described as weak.
However, even in a weaker case, if the prejudice to be occasioned to an applicant is extraordinarily severe, this may, in itself, tip the balance in favour of the granting of interim relief. Woodward J put this proposition as follows in Bullock v Federated Furnishing Trades Society of Australia:[6]
Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.
[6] Bullock v Federated Furnishing Trades Society of Australia (1985) 5 FCR 464 at [472] (Woodward J).
In the current matter, the applicant contends that there is such a serious issue to be tried, which favours the granting of the interim relief sought by it. In this respect, counsel for the UWU, Mr Blewett asserts that there are inherent weakness implicit in SA Water’s case, which establishes a significant level of probability that the decision to terminate Mr White and Mr Fellowes must have been influenced by their industrial activities, in the work place, on or about 23 September 2021 or in the months beforehand.
In addition, it is Mr Blewett’s contention that this conclusion is buttressed by the legislative principles, which the court is required to apply to its adjudication of the issues, namely the fact that it is the employer who bears the evidentiary onus of establishing why the adverse action was taken, not the individuals who were the subject of it.
There can be no doubt that Mr Fellowes and Mr White have been the subject of adverse action as defined by the Act. The central issue, at the final hearing stage, is why was the action taken? The onus is on SA Water to establish that it did not terminate either Mr White or Mr Fellowes for a protected reason under the Act. In this context, section 361 of the FWA is central. This section provides as follows:
(1)If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No 2) explained the operation of section 361 of the FWA in the following terms:
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.[7]
[7] Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10] (Collier J).
In Bendigo Regional Institute of Technology and Further Education v Barclay & Anor (“Barclay”),[8] which like the current matter was a case concerned with the application of section 346 of the Act, the High Court discussed the application of the onus arising under section 361. In the case, Gummow and Hayne JJ said as follows:
In determining an application under s 346 [it is necessary to] to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.[9]
[8] Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No 1] (2012) 248 CLR 500.
[9] Ibid at 542 [127] (Gummow and Hayne JJ).
What is required is a casual connection between the adverse action complained of, and a protected attribute of the employee concerned. In this case the industrial activities attributed to Mr White and Mr Fellowes. If this is established, the onus shifts to the relevant decision maker, within the employer, who must provide evidence as to why the relevant adverse action and establish that it was not for any prescribed reason.
In State of Victoria (Office of Public Prosecutions) v Grant,[10] White J summarised the relevant principles, applicable to section 361, as follows:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceedings.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[11]
[10] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.
It is Mr Blewett’s submission that his clients will be assisted by the presumption, arising under section 361, at the final hearing stage. He submits that there is no dispute that the two men had exercised their entitlement to engage in industrial activity, in the lead up to their termination. In his written submissions, Mr Blewett summarises his case as follows:
The essence of the applicant’s case is that the respondent’s satisfaction that White and Fellowes had engaged in the conduct alleged of them was influenced by the fact of the union-related and bargaining related activity in which White and Fellowes had engaged. That is, that the reasons for termination of employment, included those proscribed reasons. Those reasons constituted “substantial and operative” reasons for the termination.[12]
[12] See Applicant’s Outline of Submissions on Interim Relief dated 16 December 2021 at [38].
As I understand Mr Blewett’s submission, the temporal correlation of the termination of employment, with the protected industrial activity, in the context of what he would describe as thin allegations of misconduct against Mr White and Mr Fellowes, axiomatically creates a serious issue to be tried.
On the other hand, Mr Keane, counsel for SA Water, conceded that the two men were members of the Union, and did engage in the various work stoppages. However, he contends that they cannot be characterised as being obvious industrial activists, certainly not from the perspective of the relevant decision maker.
In contrast, it is submitted that in the context of SA Water having established what can be characterised as a very strong prima facie case of misconduct, by Mr White and Mr Fellowes in the workforce, the implications of section 361 to the current matter are significantly reduced and cannot be regarded as decisive at an interlocutory stage.
Essentially, it is Mr Keane’s submission that the evidence indicates that Ms Mower and Mr Tscharke were oblivious of the two men’s connection with the Union and, in any event, the obvious malice of the behaviour considered, by SA Water, to have been committed by them, even if it was ineptly and erroneously intended to place pressure on the employer, in the context of an industrial negotiation, is obviously capable of being sanctioned by their termination.
In all the circumstances of this case, it is Mr Keane’s submission that the evidence of Ms Mower, supported by that of Mr Young, demonstrates an obvious prima facie case as to why Mr White and Mr Fellowes’ employment was terminated. Namely, that they interfered with SA Water’s property, and did not perform the duties required of them, then they lied about their conduct when challenged.
In these circumstances, Mr Keane contends that they have not demonstrated that there is a serious issue to be tried, in the sense that the Union cannot establish sufficiently viable prospects of success, at trial. He would characterise the applicant’s case as being inherently weak and conjectural in nature.
Each party contends that they are favoured by the balance of convenience. In the case of the Union, it points to the fact that Mr White and Mr Fellowes are not wealthy individuals and the loss of employment will create significant financial hardship for each of them.
In addition, they are each likely to suffer psychological harm as a consequence of being unable to work, which will erode their sense of self-worth and deprive them of positive interactions with fellow employees. It will be emotionally devastating for each of them to be deprived of the sense of meaning work provides for an individual.
On the other hand, the employer points to the fact that, if its case is made out, it will be prejudiced by being compelled to reinstate two employees, who have acted purposefully and deliberately against its interests. This is significant given the fact that it is a publically based statutory organisation that is tasked with providing an essential service to the citizens of South Australia, namely the provision of water and sewerage.
In these circumstances, SA Water contends that it is entitled to expect its employees to advance its statutory objectives without question and to act decisively when an employee acts against those publically directed objectives. Accordingly, on the balance, it contends that it would be greatly prejudiced if compelled to reinstate two employees, whom it believes have actively worked against its interest.
As previously indicated, it is part of the Union’s case that Mr White and Mr Fellowes should be compensated, if it is found that adverse action was taken against them in contravention of one of their protected workplace rights. In this context, the court, in assessing where the balance of convenience lies, is required to consider whether inconvenience, to one or other of the parties concerned, is one which can be sufficiently ameliorated by an award of damages at trial.
In this particular case, each party contends that an award of damages alone is insufficient to remedy what would flow from the injunction in question either being granted or not granted.
THE EVIDENCE
As a testament to the intensity of the controversy, which this case has generated, in a fairly short timeframe, each party has prepared lengthy affidavits. In the Union’s case, it relies on the following affidavits:
·Darren Roberts, who is a union official employed by the UWU. He is the organiser for SA Water;
·Mark Fellowes;
·Adam White;
·Peter Couzner, who was previously employed by SA Water at its Port Pirie depot but has more recently gone to work at its Crystal Brook depot. He has personal knowledge of the fire plugs in the Lower Broughton Road area; and
·Daniel Joyce, who is a farmer who farms land near Lower Broughton Road. He deposes as to frequent water leaks in the area, in which Mr White and Mr Fellowes are accused of tampering with a fire valve.
The Respondent relies on two affidavits:
·Paige Mower; and
·Christopher Young, who as previously indicated, made the ultimate decision to terminate Mr White and Mr Fellowes’ employment. He relied on information provided to him by Ms Mower and Mr Tscharke.
There is no controversy that Ms Mower’s recommendation to Mr Young constituted an indispensable contribution to what was ultimately his decision to terminate the two men.[13] Accordingly, if some aspect of Ms Mower’s recommendation to Mr Young is vitiated by an improper consideration, it will render Mr Young’s decision unlawful, although he personally was not aware of this fact.
[13] See Elliott v Kodak Australia Pty Ltd [2001] FCA 1804 at [37] (Lee, Madgwick and Gyles JJ).
The degree of Union involvement of Mr White and Mr Fellowes
Mr Fellowes began work at SA Water in May 2020. He joined the Union in either July of 2020 or June of 2021.[14] His annual salary was $60,000.00. He is currently in a de facto relationship and has a 2 ½ year old daughter. His partner is engaged in home duties.
[14] See Affidavit of Mark Andrew Fellowes filed 30 November 2021 at [7] and [24].
Mr Fellowes is living in rented accommodation but has purchased a home, which is due to settle in January 2022. He and his partner have car loans. Without regular employment, his financial situation is parlous. Clearly, given the forthcoming settlement of his property, his termination could not have come at a worse time for him.
It is Mr Fellowes’ evidence that he has been involved in most meetings between Union officials and the rank and file, at the Port Pirie depot, about the progress of the enterprise bargaining process with SA Water. He describes himself as being pretty outspoken. Mr Fellowes has taken part in all of the protected industrial actions, including the demonstration at SA Water’s headquarters, on 24 September 2021.
Mr White has been employed by SA Water since September 2018. As previously indicated, he is the supervisor of Mr Fellowes and was responsible, as part of his former duties, to ensure SA Water met its essential services targets, within specified timeframes.
As I understand it, this means he had a responsibility for the practical implementation of measures to ensure work crews responded to call outs, including in respect of leaking water mains, within a designated period of time. From the prospect of management, this rendered his alleged behaviour in engineering a leak, during a period of industrial shut down, all the more culpable.
Mr White has been a member of the Union since February 2021, when the currently concluded enterprise bargaining process commenced. He describes himself and Mr Fellowes as workplace leaders, for the Union, within the northern regional area, although neither of them is a formally appointed UWU delegate.
Essentially, Mr White describes himself as having a grass roots role, with employees of SA Water, in the northern region. He attends all Union meetings and liaises with fellow workers as to issues of concern to them. He attended a meeting, with his local Member of Parliament, in mid-October 2021 to discuss Union related issues and raise their profile in the community.
It is Mr White’s evidence that he was strongly supportive of the industrial action instigated by the Union, and encouraged other members of the workforce to participate. He describes himself as being “the most vocal Union member at Port Pirie [who is not] afraid to speak up”.
Essentially, Mr White characterises himself as having a significant profile, as a Union member, in the workplace at Port Pirie. In addition, it is his position that, in May of 2021, when there was a team meeting, which he attended at the Port Pirie depot, Mr Bell, a member of SA Water’s management team and Mr Young had the following conversation with him:
Mr Bell came over to me after the meeting had finished and said “when you’re in those meetings and you get pretty vocal it could be deemed as being aggressive”, I laughed and said ‘that’s just passion, if it was aggression you’d know it”.
Mr Bell and Mr Young then again came over to me and said it was the best offer we were going to get. It was my understanding they wanted me, as the Field Co-Ordinator and second in-charge, to encourage the other SA Water workers to vote it up. I said to them “nobody puts their offer straight up” and in response they stated words to the effect “no trust us, this is the deal, it is our best offer”. I did not believe them.[15]
[15] See Affidavit of Adam James White filed 29 November 2021 at [33]-[34].
Mr White’s base salary is around $70,000.00 per year, but with call out and overtime, he can earn up to $100,000.00 per annum. Mr White is married and has four children, three of whom remain dependent upon him. His wife is also engaged in full time employment earning a salary of $52,000.00 per annum.
Mr White has deposed that he has significant mortgage payments each week and private school fees, in respect of one of his children. Significantly, his wife has a serious medical condition, which will require her to have surgery in the early New Year. Her income will be impacted as a consequence. Again, the loss of employment comes at a crucial financial time for Mr White.
Mr Roberts describes Mr White and Mr Fellowes in the following terms:
Fellowes and White are active leaders for UWU members, particularly in Port Pirie and the surrounding areas. They attend all UWU and multi-Union meetings for members, with a focus on representing the northern regions. They have ensured that the UWU is properly across the concerns and issues of our regional members in the northern area.
Fellowes and White are two of our most outspoken UWU representatives.
In being leaders in the northern regions, Fellowes and White would:
a)Regularly explain to members why they should be an UWU member, that the benefits of being part of a Union are and would explain to non-members why they should join UWU.
b)Notify other members of the time and meeting place of meetings (whether verbally or through WhatsApp, email text message or through other communication mechanisms).
c)Ensure that people were aware of what was going to be discussed at Union meetings.
d)Be proactive in organising future industrial action, which would involve seeking feedback from members about what industrial action to take, when to take it, how long the action would be sustained for. Discussing with members what they wanted the outcome and the objective of the action to be.
e)They would ensure that there was ongoing support for the action by UWU members, they would talk to other UWU members about any concerns they had, alleviating those concerns and/or taking steps to address any issues that might have occurred.
f)They would be proactive in the promotion of the taking of industrial action, and the benefits of taking industrial action.
g)They would educate members regarding protected industrial action, including limitations and what was permitted under the Fair Work Act (that is, what activities members could do versus activities that would not be covered by the protected industrial action).
h)They would collect signatures of the community to support UWU members’ claims as part of bargaining.
i)As a Union Official, if I needed question answered about SA Water, to get in contact with someone or to seek the views of our members, Fellowes and White would be two of the first people I would call. Similarly, Fellowes and White would take steps to distribute information that UWU wanted to send to our members at SA Water.[16]
[16] See Affidavit of Darren James Roberts filed 29 November 2021 at [20]-[22].
The effect of Mr Roberts’ evidence is that the enterprise bargaining process, between the UWU and other unions with SA Water, has been a protracted and controversial one, including several work stoppages, originally of one hour in duration, but extending to 24 hours later on in the bargaining process.
In this context, it is the submission of Mr Keane that Mr White and Mr Fellowes, including their dismissal in November, have had little, if any, impact upon the enterprise bargaining process, given that it has recently been concluded, with approval by the workforce of SA Water.
Mr White and Mr Fellowes’ evidence in respect of their shift of 23 September 2021
Both men agree that they were allocated to do the south run on the morning of 23 September. This involved reading water meters. Given the rural nature of the country side, each asserts that it is difficult to locate where meters actually are, and the online tool to assist them in this regard is not particularly helpful.
As a consequence, it is their position that the task of meter reading often is protracted and it is not uncommon for workers to go for extended periods of time, without locating a single meter, particularly if they do not know the area well. In their affidavit material, both men indicate that the process of meter reading, on this particular day, was very slow and posed significant difficulties for them each. Both indicated a lack of familiarity with the area.
A tool box meeting was convened a few days after 23 September by the district leader for Port Pirie, Mr Northcott. Mr Northcott apparently complained that he had been called out to attend to a leaking fire plug in the early hours of 24 September, the day of the planned stoppage, when the Port Pirie depot had only a skeleton staff. He indicated that this callout and a subsequently located leaking plug, on Lower Broughton Road, was being subject to investigation. Mr White and Mr Fellowes have deposed that they thought little of this investigation, as they had done nothing wrong.
On 3 November 2021, both men had their work mobile phones repossessed by Mr Tscharke, as part of the investigation. In addition, as previously indicated, the following day, each was suspended from work on full pay. Each was summonsed to a disciplinary hearing and advised in writing of the allegations made against them by SA Water. These centred on allegations of tampering with a fire plug and leaving the water meter running and then later leaving the meter run, whilst claiming to have been working.
In their respective affidavits, both Mr White and Mr Fellowes have deposed in similar terms, as follows:
I did not tamper with the fireplugs on 23 September 2021 and was not absent from work as alleged on the afternoon of 23 September 2021. On this day, neither I nor Mark Fellowes touched or came into contact with any fireplugs as we were reading meters.
I know there are multiple fireplugs leaking around the Lower Broughton and Wandearah Road area because I have seen the water flowing on the roads and attended callouts to fix them. This is common practice because leaving the fireplugs open means the water supply flows properly and does not cause a burst.[17]
[17] See Affidavit of Adam James White filed 29 November 2021 at [98]-[99]; Affidavit of Mark Andrew Fellowes filed 29 November 2021 at [91]-[92].
Ms Mower’s evidence regarding the incident of 23 September 2021
Ms Mower deposes that the 24 hour stoppage formally commenced at midnight on 24 September 2021. As a consequence, there was only one employee at the Port Pirie depot, during the stoppage. This was Mr Northcott, who was responsible for any emergency callouts during the designated period.
Ms Mower deposes that in the early hours of the morning of 24 September 2021, SA Water’s customer call centre received two anonymous calls, from two female callers, the former who indicated firstly that she had seen water squirting onto the road at Old Broughton Road and secondly the later who reported seeing water on the side of the road near Birdie Track Road. Neither customer in question could be subsequently traced. One not leaving details and the other having used a phone, which was later found to be disconnected.
Mr Northcott was required to attend to these complaints. As they occurred out of hours, it was a requirement that he have an 8 hour break before returning to work. Due to the protected action and a dearth of available staff, this caused SA Water significant disruption.
SA Water viewed the two reports as being suspicious in nature. Ms Mower was delegated to investigate the matter and, in this context, spoke with Mr Tscharke. Mr Tscharke provided the following opinion, in respect of the two reported leaks:
·It was very unusual for 2 leaks to come in in such quick succession at that time of night;
·No water or leak was found in relation to the call at 12:39am;
·The District Leader found a fire plug had been turned on at approximately 1524 Lower Broughton Road, causing water to flow onto the road;
·The fire plug was on about “2-3” turns and was flowing as if someone had turned it on, the water flow being too much to be an actual fire plug leak, he reported that it turned off fine and was not faulty; and
·Nobody from the Port Pirie Team had any reason to be in the area on the days leading up to 24/9;
·Their proximity to the Protected Action, meaning less employees were available to respond to the reports;
·The Port Pirie depot, being a country depot, does not typically receive those types of calls in such short succession, or at that time of night where visibility on a country dirt road is poor;
·One call turned out to be a false report; and
·The other called could not be contacted on the number she had provided.[18]
[18] See Affidavit of Paige Mower filed 13 December 2021 at [16].
There is no controversy that water was flowing from a fire plug at Lower Broughton Road on 23 September 2021. Where the parties vehemently disagree is whether this flow was deliberately engineered or whether it can be ascribed to other authorised operational requirements of SA Water, particularly the need to relieve pressure in the relevant pipe to avoid a rupture.
In this context, Mr Young has provided evidence as to how such valves are operated. Essentially, a large specialised tool is required to turn such a valve on or off. In addition, the valves in question are covered by a latch, which has to be removed before the valve can be operated. Necessarily, it is a specialised task, which can only be carried out by a member of either SA Water or the Country Fire Service, both of which have authority to use the valves – the latter in the case of fire.
On 23 September, the work vehicle being utilised by Mr White and Mr Fellowes was subject to a GPS tracking device. Ms Mower was able to access the data generated by this device for the date in question. In this context, she deposes that this data placed the vehicle, being driven by Mr White and Mr Fellowes, in the vicinity of the leak located by Mr Northcott, which was approximately 15 kilometres from the job, which they should have been attending to, which was reading water meters some way away from the Lower Broughton Road fire plug.
In addition, Ms Mower requested SA Water IT Services to investigate phone records and phone data in respect of the mobile phones utilised by Mr White and Mr Fellowes. These phone records “appeared to show both Mr White and Mr Fellowes using phone data on mobile phones in the area of the running fire plug”.[19]
[19] Ibid at [18]-[19].
Essentially, it is the effect of Ms Mower’s evidence that she regarded the phone calls of the early morning of 24 September as being bogus, particularly as they related to the leaking fire plug on Lower Broughton Road and it seemed probable that the leak had been purposely engineered.
More significantly, independent date analysis placed both Mr White and Mr Fellowes in the vicinity of the leaking fire plug, which they had the skills and tools to open, but they were not tasked to be in the area at the time and had no reason to be so.
As previously indicated, Ms Mower attended at Port Pirie, on 3 November 2021. In this context, she seized Mr White’s mobile telephone and accessed its contents. In these context, Ms Mower deposes as follows:
While I was at the Port Pirie site, I located a text message on Mr White’s work phone which indicated he was upset about SA Water’s enterprise bargaining process. That text message, sent to an SA Water colleague, said: ‘I need to try and miss some targets without making it look deliberate’.
As part of Mr White’s role, he was responsible for scheduling of SA Water’s Field Technicians at the Port Pirie Depot to respond to call outs within timeframe targets as set by the Essential Services Commission of South Australia (ESCOSA). ESCOSA set different call-out response targets depending on the nature of the report, which SA Water is required to meet. For example, SA Water might be expected to respond to a certain call out within an hour. For a less serious issue, SA Water might be expected to attend the report within a 2-day timeframe.
When I found the text message on Mr White’s phone suggesting that he needed to “miss some targets” without it looking deliberate”, I was particularly concerned because Mr White had the ability to schedule SA Water’s response to call-outs, so that SA Water missed ESCOSA targets. Based on my understanding of events on 23 September 2012, in conjunction with this text message, I was concerned that there had been possibly been intentional tampering with the network prior to the Protected Action.[20]
[20] Ibid at [23]-[25].
Mr White does not dispute that he sent the message in question. However, it is his position that the message was intended to be jocular and ironic in tone rather than a reflection of any intention to sabotage call out times. It is his position that the message which he wished to be conveyed, to a fellow employee, was that SA Water undervalued its workforce is because it is too efficient in meeting its targets and accordingly it effort go unappreciated by management.
In this context, Mr Blewett asserts that no employee, who really intended to sabotage its employers’ facility would convey such an intention, so blatantly, through a means of communication overseen by that employer. In response, Mr Keane asserts that such blatant stupidity could be the only explanation for sending such an apparently incriminating message.
Ms Mower has also deposed as to her experience of interacting with Mr White on 3 November 2021. It is her case that he became agitated and aggressive in his interactions with Mr Tscharke and she heard him swear. In this context, she asked him to lower his voice and not shout at us. As previously indicated, Mr White’s behaviour, on this occasion, has also been the subject of disciplinary enquiries.
Mr White denies speaking loudly or raising his voice. It is the import of his evidence that he believes the episode in question has been overstated. From my perspective, this aspect of the case is the least significance and, of itself has no great moment.
The disciplinary enquiry of 11 November 2021
The relevant enquiry into the incidents of 23 September, in particular, took place on 11 November 2021. A Union representative attended remotely and both Mr White and Mr Fellowes had access to a support person. Both of them denied the allegation that they had tampered with the fire valve and each asserted that they would not be so stupid as to engage in such conduct.
Mr White, in his interview, asserted that there had been a number of bursts in the relevant area and valves needed to be left open to the right amount to allow water to flow and for excess air pressure to flow out.
Mr Fellowes indicated that he had been reading meters in the vicinity of the leaking plug and it is common practice to leave valves/plugs open, following a pipe burst to ensure regularity of water supply further down the line.
It is not my function, at this stage, to determine whether the disciplinary enquiry was procedurally fair or otherwise. Ultimately, my jurisdiction will be to determine why the relevant adverse action was taken, particularly whether the decision related to a protected attribute of either Mr White or Mr Fellowes.
Accordingly, it is not strictly necessary for me to ascertain what the cause of the leak in question was. That there was such a leak appears to be incontrovertible. The essential issue, at this stage, is whether SA Water have used the fact of the leak as some sort of ruse or subterfuge to terminate the two men’s employment or, more subtly, whether they have improperly or carelessly assessed the circumstances surrounding the incident because of their unlawful animus for Mr White and Mr Fellowes arising from its perception of their union activity, which has, in turn, infected the decision-making process with illegality.
In Mr Blewett’s terminology, whether SA Water has been so blinded in its assessment of what may very well be an unremarkable and unsuspicious incident, because it has some way connected it to two of its employees whom it knows have a union profile thus vitiating the entire termination process.
In this context, neither Ms Mower nor Mr Young have deposed as to having any personal knowledge of either Mr White or Mr Fellowes’ involvement in union activity. However, necessarily, both were aware of the authorised stoppage scheduled to occur from midnight on 24 September 2021. In this sense only, both Ms Mower and Mr Young have deposed to a temporal connection between the leak and the investigations which they undertook.
Mr Young’s evidence
Mr Young has deposed that he was aware that all of the employees, at the Port Pirie depot had participated in the authorised stoppages, which had occurred between early-September and early-December of 2021. He further deposed that there had been worker involvement, in the stoppages, in other rural depots of SA Water. However, he has also deposed that he was not personally aware of any specific involvement by Mr White or Mr Fellowes or their engagement with union activities generally.
I appreciate that, given the reverse onus created by section 361 of the Act, such disavowal does not necessarily preclude the court from determining the decision was made for a protected reason. However, in my view, it is necessary for me to analyse the context of the relevant decision, in my determination of the strength or otherwise of the prima facie case involved.
Ms Mower reported to Mr Young her view that both employees were in the area of the fire plugs, which were found to be 2-3 turns open, when they had no reason to be there and were supposedly tasked to be reading water meters in another location.
In determining what was the appropriate disciplinary action to be taken, Mr Young deposes that he had regard to SA Water’s statutory obligations to provide reliable water services to its customers, and what he understood of the operational implications of such a leak, which on the basis of Ms Mower’s evidence, he regarded as being intentional.
In this context, he concluded that the action of opening the valve created a health and safety risk, and had the potential to impact on SA Water’s business for the following reasons:
·The relevant fire valve was part of a network of pipes in the Port Pirie area. If there had been a fire in the network, which required the CFS to access another fire valve in the network, the open valve had the potential to siphon dirty water back into the water network, which would have required intensive flushing and water sampling;
·In the event of a fire, the CFS may have had insufficient water pressure available to fight the fire;
·Farms in the Port Pirie area rely on adequate water pressure and an open valve can effect water pressure within the water system, effecting the livelihood of farmers;
·Allowing water to flow on the road creates a health and safety issue for road users;
·If the leak was deliberately caused, it would impinge upon SA Water’s capacity to respond to other potentially urgent customer callouts and damage its reputation in this regard in the community generally.
In support of his decision that termination was a proportionate response to the seriousness of the incident, Mr Young has deposed as follows:
The actions of Mr White and Mr Fellowes, in opening the fire valve and creating an unnecessary and sham callout created a situation where SA Water may have missed ESCOSA targets, especially because SA Water had a limited ability to respond to other customer callouts that may have occurred during the industrial action.
SA Water cannot be certain that Mr White and Mr Fellowes will not again interfere with SA Water’s assets, potentially further disrupting SA Water’s supply of essential services. This is supported in light of text messages discovered as part of SA Water’s investigation process, which suggested that Mr White would deliberately engage in action to result in SA Water missing targets, something which he has the ability to do in his coordinator/2IC position.
Mr Fellowes and Mr White were (while employed) entrusted with duties that involved the repair and maintenance of SA Water’s assets, which are duties critical to the continued water supply to residents in these rural areas. Mr White and Mr Fellowes were found to have deliberately interfered with those assets. SA Water has lost complete trust and confidence in Mr White and Mr Fellowes, and does not consider that they can return to their employment with SA Water in any capacity.[21]
[21] See Affidavit of Christopher Young filed 13 December 2021 at [41]-[43].
Mr Couzner’s evidence
Mr Couzner has been employed by SA Water since 2008, largely in the Port Pirie area. His current occupation is Senior Construction and Maintenance Worker – Major Pipelines. As a consequence, he is familiar with the Lower Broughton Road pipe network. He has extensive experience in repairing broken water mains in that area.
The effect of his evidence is that fire valves are frequently used to bleed air out of water mains to avoid further breaches of the system. He deposes as follows:
The water out of the fire plug may be white, we call this ‘milky water’. You need to keep the plugs cracked until the water runs clear. This is how you know the air is out.
If the main covers a long and flat area it is difficult to remove the air from the main and you would crack multiple fire plugs to bleed the air out.
If you are trying to get the air out along a stretch of main with only one isolation valve which ends in a dead-end main, you would open all the fire plugs in that section in order to bleed the air out of the main.
Having multiple cracked fire plugs left for weeks at a time is extremely common.[22]
[22] See Affidavit of Peter Couzner filed 15 December 2021 at [27]-[30]
He further deposes that the Lower Broughton Road main ends in a dead end and is approximately 13 kilometres in length and traverses flat terrain. He asserts that it is serviced by only one isolation valve.
The import of this evidence is that he would not be surprised if the relevant fire valve, the opening of which has created the current controversy, had been left “cracked” or weeks or even months at a time. I have no reason to doubt Mr Couzner’s expertise. But his evidence is general in nature.
In my view the fact remains that Mr Couzner has not been appraised of significant aspects of the evidence, particularly SA Water’s view that Mr White and Mr Fellowes had no reason to be in the vicinity of the main in question on 23 September 2021 and, in Ms Mower’s view, based on GPS evidence, lied about their activities on the day. More significantly, Mr Couzner was not advised that a report had been made to the call centre of a burst main in the area.
In this context, the evidence of Mr Young, relying on what was told to him by Mr Northcott, assumes some significance. He asserts that the relevant valve was opened two to three turns, which suggested to him that it had been excessively opened. Whether this is the same as the main valve having been cracked (as Mr Couzner characterises it), has not been clarified nor, in my view, can it be said that Mr Couzner’s evidence significantly weakens SA Water’s position that the relevant fire valve had been deliberately tampered with rather than having been left intentionally open at some earlier unspecified time to bleed out pressure.
Mr Joyce’s Evidence
Mr Joyce is a farmer, who lives on Wandearah Road. He works paddocks which adjoin the road. He deposes that, from June 2021 onwards, he noticed significant amounts of water on the sides of Old Broughton Road, which he reported to SA Water, as he was concerned that there might be a break in the water main. In this context, he was told by SA Water workers, who responded to his query that fire plug valves were frequently left open to help water travel through the mains.
Mr Joyce further deposes that in mid-2021, he noticed fire plug valves were releasing water, which was flowing along both Wandearah Road and Lower Broughton Road. In his evidence this water was flowing for 24 hours, 7 days a week, and continues to do so. As a consequence, Mr Joyce deposes as follows:
The water flows alongside the road and can be seen by anyone travelling down it. I often see water when I drive on Wandearah Road or Lower Broughton Road.
I am now not concerned when I see water flowing because I assume the fire plug valves have been left open and that this is on purpose. I now consider water flowing to be normal for this area.
There are also a lot of reeds and other plant life growing near the pipes which indicates there is a reasonable level of water present to allow for this growth.[23]
[23] See Affidavit of Daniel Joyce filed on 15 December 2021 at [21]-[23].
More recently again, Mr Joyce deposes that the water leakage has become so extreme that it has seeped into his field, which caused his header to become bogged on 17 November 2021. He attributes this incident to the fact that SA Water has allowed open valves, on the main proximate to his land, to be opened since at least the middle of 2021. He reported the incident to Mr Northcott.
As with Mr Couzner’s evidence, Mr Joyce has not been appraised of the full circumstances surrounding the termination of Mr White and Mr Fellowes by SA Water. In addition, Mr Joyce does not specifically tie the water flows, of which he complains in June/July and November to the fire valve alleged to have been opened by Mr White and Mr Fellowes.
In these circumstances, I do not consider that his evidence can be said to have significantly blunted the strength of SA Water’s prima facie case that Mr White and Mr Fellowes deliberately interfered with one fire plug. In this context, I note that the ground seepage, of which Mr Joyce has deposed, occurred some months after the date of the alleged tampering.
Mr White’s responding evidence
As I have indicated, the GPS records pertaining to the SA Water vehicle that was utilised by Mr White and Mr Fellowes on 23 September was crucial in Ms Mower’s assessment of what had occurred on the date in question.
Mr White is not in a position to challenge this data but he has deposed that it has allowed to have a better picture of his movements on 23 September. In this context, he now concedes that he and Mr Fellowes were in the general area of the relevant fire plug. In this context, he deposes as follows:
It is likely we stopped whilst driving but I refute the assertion we deliberately stopped next to the fire plugs as stated. If we stopped in locations near fire plugs it was merely a coincidence and not intentional or to tamper with them.[24]
[24] See affidavit of Adam James White filed on 15 December 2021 at [37].
In my view, this evidence does not advance Mr White’s case significantly, which in essence is a denial that he and Mr Fellowes did anything untoward, on the date in question. This is consistent with the position he has taken throughout the disciplinary investigation and the current proceedings.
DISCUSSION
There can be no doubt that SA Water took adverse action against Mr White and Mr Fellowes when it terminated their employment. As a consequence, the Union is entitled to engage the provisions of Part 3-1 of the FWA.
In addition, there is also no controversy that the two men are members of an industrial association, which was in the process of negotiating a new enterprise agreement, which had direct and personal implications, if that agreement was accepted, for both Mr White and Mr Fellowes. As such, the two men were entitled to advocate, in the workplace, in regards to the potential advantages and disadvantages of such an agreement.
What is in dispute, in this case, is the extent of Mr White and Mr Fellowes’ industrial activities and more specifically the interaction of these activities, if any, with SA Water’s decision to terminate their employment.
This is the central issue to be tried between the parties – why was Mr White and Mr Fellowes’ employment terminated. The correlation of some level of industrial activity with an episode of adverse action does not necessarily amount to a causal link between the two.
In Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd,[25] French CJ and Kiefel J said as follows:
Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.
[25] Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, 252 [19] (French CJ and Kiefel J).
The decision maker at SA Water, so far as the decision to take adverse action against Mr White and Mr Fellowes, was Mr Young. His decision was informed by the investigations conducted by Ms Mower, which included a process of disciplinary hearing, at which the men were provided with the allegations levelled against them and each was given an opportunity to comment upon them.
It is not within the remit of the current proceedings for me to comment upon the fairness or otherwise of this hearing. Rather, I must remain focussed on the strength or otherwise of the reasons proffered by SA Water for it taking the action, which it did vis-à-vis Mr White and Mr Fellowes’ ongoing employment with it.
As the relevant authorities indicate, the evidence of the relevant decision maker, as to why a particular decision was made, given the application of section 361 of the Act, is likely to be crucial in the court’s determination as to why any particular instant of adverse action was taken. Such decision makers are required to provide evidence of the substantial and operative factors which led them to take the applicable adverse action.
It is essentially a question of fact to be elicited from all the evidence available. I acknowledge that direct evidence, from a decision maker, may be insufficient to shift the onus arising from section 361 if it appears unreliable in face of other objective evidence.
It is the submission of Mr Blewett, as I understand it, that such objective evidence has been provided by Mr Couzner and Mr Joyce, which has, at least, the potential to engage the reverse onus. However, it also needs to be noted that:
[D]irect testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [26]
[26] See Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No 1] (2012) 248 CLR 500, 517 [45] (French CJ and Crennan J).
Both decision makers in this case, Mr Young and Ms Mower, have provided extensive evidence regarding their respective roles in the decision making process. In this context, each has disclaimed having any specific knowledge of either Mr White or Mr Fellowes’ union activities.
In my view, this is not surprising. The evidence of the two men is that theirs was a grassroots level of union activity. They did not take part as delegates in the actual enterprise agreement negotiation process. Ms Mower is an Human Resources Business Partner. Mr Young is a Senior Manager. Both were based at SA Water’s head office. As such, neither had much direct involvement in the Port Pirie depot, on a day to day basis.
As was indicated by the High Court in Barclay, the court must be wary of attributing subliminal motivations to decision makers. The issue being “what actuated the conduct in question and what the person in question thought he or she was actuated by.”[27]
[27] Ibid at 545-6 [144] (Heydon J).
However, at this provisional case, it must remain possible that Ms Mower may have been influenced by some other individual, with a more localised knowledge of Mr White and Mr Fellowes’ Union activities at the Port Pirie depot, which has in some way impugned the decision making process.
However, in my view, there is no evidence to support the court drawing such an inference, at this interim stage. As such, the possibility must be regarded as largely conjectural. Mr White and Mr Fellowes are not able to provide any direct evidence that either Mr Young or Ms Mower were influenced by their industrial activities. To the contrary, both Ms Mower and Mr Young have denied that this was the case and in my view have provided a strong and coherent account of what was the operative reasons for their decision.
In my assessment, SA Water’s case, as to why the decision to terminate was made, namely it considered that the two men had engaged in a pre-meditated course of tampering with a piece of its essential plant, and then lied about it when their conduct was caught out, appears to me to be strong, on a prima facie basis. This is particularly so given that it is supported by independent IT and GPS records, which have not been challenged.
Mr White concedes that he is not in a position to challenge the electronic evidence, which places him and Mr Fellowes in the vicinity of the relevant fire plug, on the day in question. However, each in tandem with their respective denials of misconduct, seeks to provide, in the form of the evidence of Mr Couzner and Mr Joyce an exculpatory explanation as to why water may have been leaking, from this particular fire plug.
Neither Mr Joyce nor Mr Couzner are able to give evidence specifically about what occurred on 23 September 2021. Mr Couzner’s evidence is generic in terms of the practices, at the Port Pirie depot, in regards to water mains and fire plugs generally. In my view, their evidence must be regarded as largely conjectural in nature.
At this juncture, I do not consider that the evidence of either Mr Couzner or Mr Joyce, either individually or taken in concert, is presently sufficient to cast an objective level of doubt on the probity of Ms Mower’s and Mr Young’s stated reasons for taking adverse action against Mr White and Mr Fellowes.
Whether the evidence of Mr Couzner or Mr Joyce is accepted at trial remains to be seen. In this context, I remind myself that the serious issue to be determined, at trial, is not how SA Water managed fire valves in the Port Pirie area but rather why it took adverse action against Mr White and Mr Fellowes, and whether that action was motivated or influenced by a protected ground.
In this case, in my view, SA Water have provided a strong and compelling case as to why the action in question was taken. It is logically consistent and posited upon what appears to me to be a sound evidential foundation, notwithstanding the fact that the section 361 onus still resides on it.
In contrast, the Union’s attack upon the genuineness of SA Water’s stated reasons rests “if not upon speculation then upon inferences of delicate provenance” to utilise the terminology adopted by Snaden J in Australian Worker’s Union v Chemring Australia Pty Ltd (“Chemring”).[28]This being the generic evidence of Mr Couzner and Mr Joyce regarding habitually leaky fire valves in the relevant area and the practice of cracking such valves to dissipate pressure.
[28] See Australian Worker’s Union v Chemring Australia Pty Ltd [2019] FCA 750 at [44] (Snaden J).
As Snaden J determined in Chemring, I consider that the reverse onus is something to which I can have regard to in assessing whether there exists a prima facie case. Certainly, this is a central plank of the applicant’s case. However as Snaden J also remarked, I remain of the view that its prima facie case remains weak and the existence of the reverse onus, at trial, does not materially improve its prospects.[29]
[29] Ibid at [49].
I adopt this analysis for the present matter. I do not consider the applicant has mustered a strong case to blunt the respondent’s evidence that what Mr White and Mr Fellowes did was to deliberately open the valve in question to cause a large discharge of water. This is necessarily a fundamentally different process to bleeding out air pressure from a main.
From SA Water’s perspective, two anonymous callers alerted it to this major leak, which it was required to attend to expeditiously. As such, it was a significant operational incident necessitating inquiry. It had objective electronic evidence which placed the two men in the vicinity of what it regarded as a valve which had been deliberately opened to a significant degree. Only individuals with expertise and specialised equipment could have opened the valve in question which it believed was clearly calculated.
Significantly, it regarded the explanations provided by Mr White and Mr Fellowes as to their activities on the day in question to be lacking in candour given the data available to it placed them in the vicinity of the open valve and they were not in a position to refute this evidence. In these circumstances, I regard the scenarios posited by Mr Couzner and Mr Joyce, as how the leak of 24 September may have come about to be fragile and conjectural in nature.
In this context, at this stage, the evidence of Mr Young as to the reason why he decided to terminate Mr White and Mr Fellowes’ employment appears intact and untainted by any association with a protected purposes. On the other hand, in my assessment, the prima facie case of the applicant is weak.
THE BALANCE OF CONVENIENCE
I accept that their continued termination will have drastic financial implications for both Mr Fellowes and Mr White. Clearly, to be deprived of a recurrent income, when each has many significant calls on that income, in the form of dependents and accommodation expenses, will be serious indeed for each of them.
I also accept that the emotional consequences of being deprived of the social support, inherent in being a valued member of a work team, will also be significant. Undoubtedly, if Mr White and Mr Fellowes’ employment remains terminated, they and their family will suffer financially to a significant extent, and they will each be emotionally impacted.
I also accept that the return to work of the two men would have significant practical and logistical implications for SA Water. If its case is established, both men have acted clandestinely and maliciously against its interests, as both a corporate entity, and statutory organisation, directed to supplying water and sewerage services efficiently to the people of South Australia.
I accept that SA Water is an essential service and it is axiomatically not in the public interest that its facilities and plant be subject to malicious damage. As such, it is entitled to act expeditiously, when it perceives its interests and those of the community which it serves, have been actively harmed, or compromised.
Although I concede that SA Water is a large employer, and its Port Pirie depot relatively confined from other aspects of its workforce and management, I do not doubt the general prejudice, which it will be occasioned if Mr White and Mr Fellowes are able to return to work, pending the substantive trial in the matter.
In these circumstances, I would assess the balance of convenience to be finely balanced. In these circumstances, the weakness of the prima facie case, presented by the applicants, becomes central. For the reasons already provided, I accept that the applicant’s case is weak, notwithstanding the reverse onus applicable at trial.
For these reasons, I am satisfied that the court’s discretion to grant the interlocutory injunctive relief sought should not be granted. The interlocutory application is dismissed and no order is made as to costs. I will list the matter for further directions on 1 April 2022 at 9:30 am. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Dated: 23 December 2021
[11] Ibid at [32] (Tracey and Buchanan JJ).
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